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Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within

The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how separation of powers can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions.

A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions: it creates a civil service not beholden to any particular Administration and a cadre of experts with a long-term institutional worldview. Executives and academics routinely malign bureaucracy as inefficient, but the inefficiency presumed in the Founders' design of three overlapping branches needs some internal replication given the seismic shift in power to the Executive Branch. This Article therefore proposes a set of mechanisms that can create checks and balances within the Executive Branch. The apparatus of these restraints is familiar - separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for their workers, reporting requirements to Congress, and an impartial decisionmaker to resolve inter-agency conflicts. The idea is to create a more textured conception of the Presidency than either the unitary executivists or their critics espouse.